Going through a divorce is one of the most vulnerable situations for any person to be in, especially if one of the parties is resistant.
The idea of losing a partner can bring about feelings of insecurity and uncertainty about various aspects, such as child custody, financial support, and the general aftermath of the divorce. The emotional impact of the situation can be overwhelming.
Since divorce can be a life-changing and emotionally challenging experience, couples facing the possibility of divorce often seek ways to simplify the process.
While DIY divorce papers may seem like an attractive option on the surface, this article will explore both its advantages and drawbacks, as well as the importance of involving sound legal counsel. We will shed light on the potential benefits of handling divorce paperwork independently, as well as the significant risks and pitfalls that can arise along the way.
The Appeal of DIY Divorce Papers
We understand that you may want to handle your own divorce proceedings without hiring a legal practitioner to avoid incurring legal costs.
However, we would like to suggest that while cost is an important factor to consider, it shouldn’t be the only factor. When it comes to divorce, it’s vital to have an experienced and reliable attorney who can guide you through the process and ensure that your interests are protected.
Choosing the right attorney can be a daunting task, but it’s worth taking the time to find the right one for you. After all, a DIY divorce may seem like a cost-effective solution, but it can end up costing you more in the long run if you don’t have the right support.
The Pros of DIY Divorce Papers
Divorce is a tough time, and it’s easy to feel like you can handle everything on your own. While it’s great to be resourceful, it’s important to remember that attorneys have years of experience and expertise that is invaluable in a divorce case.
Trying to handle it on your own will end up costing you more in the long run. So, it’s always best to consider hiring an attorney at the start of the proceedings.
They’re here to support you through this difficult time and make the process as smooth as possible.
The Risks of Handling Your Own Divorce in South Africa
The risks involved in attending to your own divorce are numerous.
Claiming for Maintenance Correctly
It is important to formulate a claim for maintenance when issuing a summons for divorce, especially if one spouse is dependent on the other spouse for financial support. This claim should include reasons for the breakdown of the marriage relationship, the financial means of both spouses and the contributions made by one spouse towards the estate or growth in the estate of the other spouse.
Failing to do so effectively will result in the abandonment of the right to claim for maintenance.
Clauses for Dependent Children
When minor children are involved in a divorce settlement, it’s important to include specific clauses in the agreement or parenting plan to ensure compliance with the Children’s Act.
Additionally, it’s crucial to provide for the maintenance of dependent children when issuing a summons.
Type of Marriage Matters in a Divorce
In Community of Property or Out of Community of Property with the Accrual:
When spouses are married, either in community of property or out of community of property, and one spouse is unhappy about the other spouse’s failure to contribute towards the communal estate or if they feel that the other spouse will benefit unfairly, they can ask for half of the communal estate or an amount that represents half of the difference in accrual between the spouses’ respective estates.
In such a case, forfeiture in terms of the Divorce Act must be pleaded. If forfeiture is not pleaded, it will be considered that the aggrieved spouse does not object to the division of the communal estate on a 50/50 basis or to the application of the accrual system.
Out of Community of Property:
It can become problematic in situations where parties are married out of community of property as well.
For example, if one spouse contributed to the growth of the other spouse’s estate by participating in management, and labour, taking over household chores, including raising children, and enabling the other spouse to grow their estate, a (limited) partnership must be claimed. If such a claim is not made, it can be detrimental and difficult to amend the summons or pleadings later during the divorce when an attorney is appointed to make provision for it.
Recently, the Constitutional Court passed a ruling on the discretion of a Court to make a redistribution order where parties are married out of community of property, excluding accrual, after 1 November 1984. Accurate pleas must be formulated in drafting a summons or a counterclaim for it.
Rule 43 Applications
A Rule 43 application can be used as a remedy for the availability of a spouse during a divorce action. This type of application is brought for relief while the divorce is being finalised.
The application seeks:
- Maintenance for the children who are living with the spouse who issued the application
- Maintenance for the spouse issuing the application if they have a need (including bond payments, car instalments, etc.)
- Primary residency and care of the children
- Contact rights for the other spouse
- A contribution towards legal costs.
It is crucial to seek legal assistance in cases where the residency and care of minor children are in dispute, to ensure that the summons or counterclaim includes the necessary prerequisite pleas.
Why Legal Counsel Matters
Based on the information provided above, it is clear that choosing not to hire a legal practitioner or attorney may result in you having to pay more to correct and modify legal documents. Furthermore, it could lead to you unknowingly giving up your legal rights and losing your case.
It’s important to seek legal counsel to ensure that you are fully aware of your rights and receive the best possible outcome.
Finding the Balance
SB Lawyers provides in-depth legal counsel tailored to our ever-growing technological world so that you don’t have to do your own DIY divorce papers. We strive to empower our clients by keeping them informed and guiding them professionally towards optimal outcomes.
How can SB Lawyers help you find the balance?
We understand that financial challenges can be overwhelming and that incurring extensive legal fees only adds to the burden. At Schoeman Borman Incorporated, we recommend settling a divorce amicably to avoid unnecessary legal costs. Our goal is to achieve positive results for our clients at affordable rates.